A & Anor v B & Ors [1997] UKEAT 145_97_0205

EAT
A & Anor v B & Ors
[1997] UKEAT 145_97_0205 · 1997-05-02
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against a decision of an Industrial Tribunal which dealt with an application for the disjoinder of certain parties to proceedings brought by an applicant alleging unlawful discrimination on the grounds of her sex.A notice has been served in this case protecting the identity of the parties. This court continued that provision pending this appeal, and accordingly I shall not refer to any of the parties by name, but will describe them in this way.The applicant is a Detective Constable with a County Police Force. The County Police Force is the first respondent to her IT1. The second respondent to her IT1 is a Detective Sergeant. The third respondent is a person who, I think, is in charge of a Regional Crime Squad; and the fourth respondent is a Chief Constable representing all ten Chief Constables who participate in or who have the benefit of the services of the Regional Crime Squad.The second respondent is also an officer appointed by the first respondents. Both she and the second respondent were seconded on different dates from their County Police Force to the Regional Crime Squad where they have remained in operation.The complaints which she makes relates to the period of service in the Regional Crime Squad. She says, in essence, that the second respondent acted in an inappropriate way and manner towards her in a variety of defined respects.By way of background, I should say that the applicant herself is suffering from medically identifiable symptoms of stress and anxiety; and the second respondent is himself obviously concerned about the serious allegations made against him which will be of concern to him, and he and she have an interest in their case being heard and ventilated and ruled upon by an Industrial Tribunal at the earliest possible date.The application for disjoinder which was filed, if I may shorten it, on behalf of the Regional Crime Squad, was based upon a cogent submission which was made to the Industrial Tribunal on their behalf by Ms Carss-Frisk, and her submission may be summarised by reference to the provisions of the Sex Discrimination Act 1975 pursuant to which this complaint is brought.A police constable, as everyone knows, is in a peculiar position so far as employment issues are concerned. He is the holder of an office. S.17 of the Sex Discrimination Act makes special provision for police constables who otherwise would not have fallen within its ambit. S.17(1) provides:
"(1) For the purposes of this Part, the holding of the office of constable shall be treated as employment- (a) by the chief officer of police as respects any act done by him in relation to a constable or that office; (b) by the police authority as respect any act done by them in relation to a constable of that office."
Sub-section 7 provides:

"(7) In this section-

"chief officer of police"-(a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as the Police Act 1996 [that is a substitution for the Police Act 1964],(b) in relation to any other person or appointment means the officer who has the direction and control of the body of constables or cadets in question;
"police authority"- (a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as in the Police Act 1996, (b) in relation to any person or appointment, means the authority by whom the person in question is or on appointment would be paid; ..."
What Miss Carss-Frisk submits is that as a matter of law a police constable such as the applicant is deemed to be in the employment of the police authority in respect of which he or she was appointed, and that the statute exclusively defines her or his employment relationship by reference to that appointment. Thus, she argues, the police constable, the applicant in this case, remained in the deemed employment only of the first respondent, and nothing that occurred in relation to her secondment to the Regional Crime Squad could effect the position in law.On the basis of those submissions, an application was made, as I have indicated, for disjoinder to the Industrial Tribunal Chairman. The case, that is the substance of this case, is scheduled to be heard during a period of three or four weeks commencing on 30th June 1997, and time has been allocated by the tribunal for such a hearing, and various interlocutory orders have been made and I assume complied with. So, the parties are in a position to go ahead with the hearing on 30th June 1997.The Industrial Tribunal faced with those submissions and with contrary submissions advanced on behalf of the County Police Force, concluded that the application should be dismissed. In other words, the Chairman concluded that at that stage the Regional Crime Squad should remain as the third and fourth respondents to the complaint.There was lodged an appeal against that decision, and at the outset of the hearing, I raised expressly with the parties the question as to the proper course which should now be followed in the light of the hearing which is so imminently due. It seemed to me, and I put it to the parties for their consideration, that if we were to hear the appeal and to allow it, then there would be a risk of an appeal to the Court of Appeal, and meanwhile the case could proceed in the Industrial Tribunal. If that were to occur, the case would proceed only against the County Police Force, and if in due time it transpired that it was not them but the Regional Crime Squad who were responsible in law for what occurred, then there would have to be a new hearing before a different tribunal because the Regional Crime Squad would not be bound by any decision arrived at by the Industrial Tribunal in their absence. It seemed to us inherently implausible that the appeal could be heard against any decision of ours before 30th June 1997, and it seemed to us, bearing in mind the human misery which is often involved in cases of this kind, that it would be both unlikely and unjust were the Industrial Tribunal to have decided to adjourn their hearing of the substance of the matter, pending any decision of the Court of Appeal in relation to any judgment that we might have given.On the other hand, we are mindful of the potential saving in costs that might arise for the benefit of the Regional Crime Squad were they to excluded from the proceedings at this stage.Raising those matters with the parties, we have to say that we have been assisted by representatives and by Counsel and I will indicate their positions.Mr Bowers, on behalf of the County Police Force, in his skeleton argument, which had reinforced our view that we needed to discuss this issue, said that the responsibility of the Regional Crime Squad can only be determined after evidence is given at the hearing and cannot be determined on affidavit evidence alone. He invited us to the view that it would be better if the Industrial Tribunal proceedings were to go ahead without any final adjudication by us on the appeal in this case. He was mindful of the risk that there would have to be two sets of proceedings if we were to allow the appeal and we were to turn out to be wrong, as a matter of law, in due time. It may be that this is a case in which the County Police Force and the Regional Crime Squad may have potential liability, it may be a case in which it is either the one or the other. It seems to us having read the decision of the Industrial Tribunal that all the options are open for further consideration by the tribunal when they have heard all the evidence. He therefore invited us to adjourn this appeal.The position on behalf of the second respondent was in one sense neutral, that is that the particular officer was not himself concerned with who would pay the bill if any bill had to be paid at the end of the proceedings, but he was concerned to make sure that the case was promptly heard by the Industrial Tribunal, and it was urged on us, and we accept, that he has a real interest in not having the matter hanging over his head no longer than is necessary.As to the position of the applicant, Mr Horan said that he felt that his client was faced with very much a " Hobson's Choice ". If the appeal was dealt with by us, then there was a possibility that there might be a further appeal. He accepted that there might then be a possibility that the Industrial Tribunal would not adjourn their proceedings and that that might leave, although he did not believe that to be so, the applicant with an empty remedy because the Industrial Tribunal might conclude that the first respondents were not responsible in law for what occurred whilst the secondment was in position.On the other hand, if we did not deal with this matter now, it would leave the question of responsibility in some doubt, and it would add to the costs of the proceedings because at the Industrial Tribunal they will be required not only to look at such incidents as they consider appropriate, but also examine the respective responsibilities of the County Police Force and the Regional Crime Squad for the management and supervision of the working conditions. Such an examination might prove to be unnecessary if in due time this court was to hold that the Regional Crime Squad could not be the employers.He would have supported the submissions which I have indicated Miss Carss-Frisk made to the Industrial Tribunal, but he recognised that it remained the first respondents' submission that whatever the statutory language might be, they were not in law responsible for what occurred during the secondment when they had no management control, so they say, over the two police officers concerned.The question of what control and so forth is something which will now be required to be investigated if we accede to Mr Bower's application for an adjournment.Miss Carss-Frisk submitted to us that we ought to refuse the adjournment. She submitted tentatively, I think, that it would be possible to get an early hearing from the Court of Appeal on this issue. It seemed to us in response to that, that it would be unreasonable to require the Court of Appeal to deal with the matter as a matter of urgency if the justice of the case could properly be met by the alternative course of our not reaching a conclusion on the matter at this time. She, in effect, suggested to us that if we were to accede to Mr Bower's request, they would be deprived of an effective right of appeal against the Industrial Tribunal's decision.We understand precisely what her submission is on this point, and have to say it is one of the matters that we have taken into account in arriving at our conclusion on this case. She will not be deprived of course of her right to argue the point, either at the Industrial Tribunal or at the Employment Appeal Tribunal, were the applicant to succeed on the facts. But we have reminded ourselves that we are discussing a difficult legal question on a hypothetical basis, because, of course, these questions would not arise for consideration if the applicant's complaint were not to succeed on the facts. That is something that must remain a possibility, although we give no indication by saying this, that we have considered the facts; we have not; that is a matter for the Industrial Tribunal and not for us.She emphasised that her point of law was a short point of construction. But, it seems to us, that the question of construction is not entirely straightforward; and having regard to the need for a purposive approach to the question of construction of the Sex Discrimination Act , it seems to us desirable that before any court applies its mind to the questions of law and the proper interpretation of s.17 and s.41 of the Act, it should be fully informed by evidence and findings of fact of the practical effect that any decision that the court might reach would have.It is a position which is therefore not at all straightforward. There is a balance to be struck. In the end we have come to the conclusion that the balance favours the application of Mr Bowers.First, we consider that the court should have the benefit of all the facts being found by the Industrial Tribunal. Secondly, we consider that this is a difficult point which could prove to be academic if the applicant were not to succeed in her application. Thirdly, we are not persuaded that significant costs will be incurred by our decision not to rule on the appeal. We believe that it must be possible for the Police Authorities between themselves to agree a substantial number of the underlying facts. And, as Miss Carss-Frisk has indicated, the point is a short point and can be dealt with in such a way, we think, as to minimise any risk of unnecessary costs being incurred. The Police Forces have a mutual interest in defeating the claim of the applicant, and we are sure that they will be able to arrive at satisfactory arrangements between themselves for dealing with the substantive facts which are raised in the complaint.Finally, we are of the view that the applicant's interests in having this case heard and determined once and once only, will best be met by taking the course that we have indicated. It would, in our view, be contrary to the proper administration of justice, and contrary to her interests, if we were to take a course which could lead to the real and substantive target of the complaint not being a party to the proceedings as a result of us taking a particular view on the law which turned out to be erroneous.For these reasons and balancing them against the points which I have indicated, we have arrived at the conclusion that the correct course for us to take at this stage is to accede to the application that this appeal be adjourned. We express the hope that the case before the Industrial Tribunal will progress smoothly during the period of time that has been allocated for it.Miss Carss-Frisk told us that she is instructed to ask for leave to appeal against the decision which we have just given. We refuse that application. We have endeavoured to exercise our discretion in this matter in a judicial manner weighing the various considerations. We therefore like to think that there is no arguable point of law which could be raised for the benefit of the Court of Appeal. There is certainly no point of principle as we see it involved in our decision. And furthermore, we would wish to indicate to the Industrial Tribunal that were an application for leave to appeal to be made to the Court of Appeal, it would be our view that they should not regard that application as impeding the hearing of the case on 30th June 1997, as it is currently fixed. It seems to us, that the interests of justice overwhelmingly favour this case being heard and determined on its merits as soon as possible with both potential respondents before the tribunal and therefore bound by any findings which are made in that case.